Is Hacking Videogame Characters Legal?

People have been digging into the code of videogames to change their characters and storylines for years. Even Ms. Pac-Man began as a hack, as we reported in today’s Wall Street Journal.

Nicholas Elias Wilson

Princess Peach is the star of a hacked version of ‘Super Mario Bros.’

Many of the hackers say they’re doing this as a form of protest, addressing digital sexism by allowing long-time damsels in distress to become heroines.

But is it legal? There haven’t been any high-profile lawsuits regarding this type of hacking, and a spokeswoman for Nintendo (which is known for vigorously defending its copyright) didn’t respond to a query about whether it plans to pursue gender-switching gamers.

“What will and will not be found to be fair use depends entirely on the circumstances,” says Ken Doroshow, a partner at Jenner & Block, who was at one point the chief legal officer for the Entertainment Software Association, a trade organization for the videogame industry.

Whether the game is being used in a commercial nature. (Are the hackers selling the game?)

The amount of the original work that has been repurposed.

Whether the new work has hurt the market for the old one. (Character gender hackers often release their changes to the game as an update file that can be married with the original game. So, you can’t play the hacked new game without owning a copy of the original one.)

By changing distressed damsels into heroines, hackers could argue they have created a “transformative” piece of work, she says.

“Do I have a new purpose different from the creator?” McSherry asks rhetorically. “I think that’s a very strong story to tell a judge.”

The 1994 Supreme Court case called Campbell v. Acuff-Rose Music – over a 2 Live Crew song, which had created a commercial parody using parts of the song “Oh, Pretty Woman” — offers some precedent to support McSherry’s view.

In its decision, the court discussed transformative use, noting that the goal of copyright is “to promote science and the arts, is generally furthered by the creation of transformative works.” In the end, the court said that although parts of the original song had been appropriated, the new piece was markedly different, and had created a distinctive new song.

Some lawyers argue the point of copyright law is to allow original creators to protect their profits for their works, but it also allows breathing room for society to respond and build off of it in meaningful ways.

There’s one other question to ask: Are the hackers circumventing any copy-protection technology to access the games? Typically, modern games have such technology to stop people from creating pirated copies and sharing them with friends. The Digital Millennium Copyright Act says it’s illegal to circumvent encryptions and other copy protections to access copyrighted work.

That may not affect these older games, many of which don’t have copy protections built into them. But newer ones might, potentially keeping hackers from changing anything but old-school videogame hits.